Surrogacy Changes in ACT Happening Now

In this video, Multi-Award Winning Surrogacy & Fertility Lawyer Stephen Page provides updates on the two current surrogacy changes happening in the ACT. The first change is amendments to ACT surrogacy laws and the second is a bill to regulate IVF practices in the ACT.

Transcript

G’day, I’m Stephen Page from Page Provan Family and Fertilely Lawyers, and today I’m talking about changes that are happening right now in early March 2024 in the ACT, and there are two changes.

When I say right now, they’re being debated this week, and those two changes are, first, amendments to the ACT’s surrogacy laws, and second, a bill to regulate IVF practises in the ACT. So I just talk about the first, and these are happening hand in hand.

The first one is some sensible changes to the surrogacy laws in the ACT that have been, well, how can I put it nicely? Mucked up a bit. So some of the sensible changes. The ACT has got the older surrogacy laws in Australia, they were the first, and they’re still there, stuck in 2004.

So they have some odd restrictions. The first is that the embryo transfer, because it can only be embryo transfer, they won’t allow traditional surrogacy, must occur in the ACT. So the change includes that the embryo transfer, the assisted reproductive treatment, can occur anywhere, and that traditional surrogacy can occur.

The second change is that currently, you must be a couple to be able to access surrogacy. It doesn’t matter about sexuality, it’s just you can’t be single. Well, they’ll allow singles, and the third is that the surrogate must be part of a couple, and well, that’s going to go as well.

And then finally, there must be a genetic link between one of you and the child, well, that’s going to go as well. So, those changes are very sensible. This will free up surrogacy laws in the ACT.

But, how they’ve mucked it up is that they’ve got some regulations, some draft regulations to go with it and at the moment, you can access surrogacy in the ACT, provided it’s altruistic, and pay reasonable expenses for your surrogate.

So you’ve got to reimburse your surrogate, and it can’t be commercial. What you can’t do in the ACT at the moment is pay for your surrogate or even your surrogate’s partner to have time off from work. But you can, whatever she spent, you can pay for. Now, how’s that changing?

Well, there’s more a prescriptive model, which is saying, if you meet these various requirements, therefore you can pay for that. Well, that’s actually come out with an odd outcome and in a very long submission I’ve done to the ACT Parliament, which is available on our website.

I’ve got a traffic light model as to the expenses that are allowed and not allowed, compared with what’s allowed now. And if you have a look at that traffic light model, virtually every expense, aside from taking time off work, is allowed now, it’s a green light.

But what do we see with this traffic light model? If you pay for parking to go and see your doctor, this is with the surrogate, that’s okay, you can reimburse it. But if your surrogate pays for If you pay for parking to go and see the lawyer, well, for advice about the surrogacy agent, that’s a commercial surrogacy agent and illegal.

But if you pay for parking for your surrogate to go and see the lawyer about going to court, that’s okay. If you pay for parking for your surrogate to go and see their counsellor, either to enter into the deal or counselling help throughout or even after the birth of the child, that’s a commercial surrogacy arrangement.

So really nuts stuff, and if you pay for maternity clothing for your surrogate, a pretty obvious thing that every surrogate needs, that’s a commercial surrogacy arrangement. These are unintended outcomes because the ACT government decided to rush these laws with minimum consultation.

The consultation period that was given was two weeks, and then the draft bill, when it was produced, wasn’t opened to public consultation. I was told as part of a briefing a week beforehand and told, well, we’re going to put a table before Parliament next week, and this is the basic outcome, but we weren’t able to see it until it was actually before the legislative assembly.

The other bill is to regulate IVF in the ACT. So IVF is regulated at the moment under a Commonwealth State and ACT scheme that any IVF clinic must have a licence or accreditation from the Fertility Society of Australia and New Zealand.

Now, I’m a director of the Fertility Society of Australia and New Zealand, but there is a requirement. You cannot operate an IVF clinic in Australia without having that accreditation. On top of that accreditation in Western Australia, South Australia, New South Wales, and Victoria, you must have a state licence.

So every clinic must have two licences, one under the federal state ACT scheme and one under the specific state laws and the state laws vary between, well, a minimum amount of extra stuff to be done to a large amount of extra stuff to be done.

The ACT has decided, for reasons best known to itself, that it is going to have ACT registration of IVF clinics, and to put it in context, there are currently three. There’s an independent IVF Clinic, Genea, and IVF Australia.

So of these three clinics, they must all have, and any other, obviously in the future, must have registration with ACT authorities. Thankfully, most of the provisions of the ACT rules are those the same as New South Wales.

Now, there’s a separate provision concerning posthumous use and I want to talk about that. I will be talking about that in another video. But most of the rules are similar between, proposed rules, are the similar between the ACT and New South Wales.

So, hopefully the cost of compliance by clinics won’t climb through the roof, and therefore, the cost that is passed on to consumers’ patients doesn’t also increase. I expect that these changes, both to surrogacy and assisted reproductive treatment in the ACT, will come into law before the next election, which is due in October.

So let’s see what the final outcome is. The ACT has a government comprised of Labour and Green with a liberal opposition, and there’s some fluidity about how the bills might be dealt with. So let’s see whether they’re enacted the form that they’re presented or there are changes.

Thank you.